Tag Archives: imr

3rd District Upholds Validity of IMR

The Third District Court of Appeals has issued its decision in Ramirez v W.C.A.B., again upholding the constitutionality of the independent medical review (IMR) process for review UR determinations and providing, perhaps, some additional nuggets for potential challenges on the W.C.A.B. decision in Dubon II that concerns the authority of the W.C.A.B. to review medical decisions.

Ramirez is the third in a series of cases where applicant attorneys have attempted to challenge the constitutionality of the IMR process on various ground. In two prior decisions (Stevens v W.C.A.B. and Margaris v W.C.A.B.), different districts of the Courts of Appeal had rejected constitutional challenges to the IMR process based on similar arguments presented by the applicant in this case.

See also: Appellate Court Rules on IMR Timeframes  

While the applicant’s arguments in this appeal were somewhat broader than either of the prior appeals, the court’s rejection was just as emphatic. Ramirez’ challenge to IMR was based on multiple arguments:

  • He argued the underlying UR was based on an incorrect standard, in effect appealing the UR determination itself to the court. This argument was rejected by the court on the grounds that the attack was at the heart of the determination of medical necessity, a determination that Labor Code  4610.6(c) prohibits the court from making. The court noted the applicant attorney did not argue that the IMR reviewer used in improper standard and that was the only one the court could only review for nonsubstantive reasons as set out in Labor Code  4610.6(h).
  • Ramirez also challenged the constitutionality of the IMR process arguing that it violates the separation of powers clause as well as state and federal principles of due process. Both of these arguments were rejected in much the same manner as the court in Stevens rejected a similar argument.
  • Ramirez argued that the W.C.A.B. decision in Dubon II, which limited the W.C.A.B.’s authority to review UR determinations to the timeliness of the decisions, was incorrectly decided and that other flaws in the UR process should allow the W.C.A.B. to assume jurisdiction over medical treatment issues. The court specifically rejected the argument that the W.C.A.B. had jurisdiction to review an IMR determination on the ground that the UR determination did not use the Medical treatment utilization schedule (MTUS).

It is on this last point the court’s language becomes interesting. The court reviewed the history of the Dubon decisions and the progression from an expansive view of the W.C.A.B.’s authority to the much narrower result in Dubon II that limits the W.C.A.B.’s authority to review only timeliness. The court does note that in Dubon II, where a UR determination is late, the W.C.A.B. could determine the medical necessity for the proposed treatment.  After review the W.C.A.B.’s decision and Cal Code Regs Tit 8 §10451.2 the Court goes on to state:

“To the extent the Board has any jurisdiction to review a utilization review as provided by this regulation, it has jurisdiction only over nonmedical issues such as timeliness of the utilization review as stated in the Final Statement of Reasons and Dubon II. We are not presented with a nonmedical issue. Any question that has the effect of assessing medical necessity is a medical question to be conducted by a qualified medical professional by way of independent medical review.  (§ 4610.6, subd. (i) [“In no event shall a workers’ compensation administrative law judge, the appeals board, or any higher court make a determination of medical necessity contrary to the determination of the independent medical review organization.”].) Whether the utilization reviewer correctly followed the medical treatment utilization schedule is a question directly related to medical necessity, and is reviewable only by independent medical review.”

While the court does not specifically indicate the W.C.A.B. was incorrect in Dubon II in its ruling that an untimely UR determination vests jurisdiction with the W.C.A.B. on medical issues; the above language certainly (at least) infers that any medical determination is beyond the W.C.A.B.’s authority. In the instant case, the court held there was not a basis to challenge the UR decision as it was timely and the other issues were not subject to W.C.A.B. review. The bolded language in the above quote certainly provides food for thought and perhaps some additional basis to challenge the W.C.A.B.’s holding in Dubon II, which, so far, has not been given a serious challenge at the appellate level.

See also: IMR Practices May Be Legal, Yet…  

Comments and Conclusions:

That this court essentially followed the logic and reasoning of the prior appellate cases on this issue certainly suggests the options for challenging the IMR process are rapidly closing. While there are still a couple of additional challenges pending in the appellate courts (Zuniga in the first district challenging on one of the issues raised here — that the limitation on disclosure of the IMR doctor prohibited the applicant’s ability to challenge the doctor on bias, conflict of interest, etc. — and the Southard and Baker cases addressing the issue of late IMR as valid IMR as previously addressed in the negative in Margaris), so far the appellate courts have shown little interest in challenging the legislature’s authority to create and mold the workers’ compensation system.

As one who has consistently believed the W.C.A.B. exceeded its jurisdiction in deciding it could address medical issues in Dubon II in spite of the strongly stated legislative purpose prohibiting exactly that conduct, I am cautiously optimistic that someone will challenge that decision; even the W.C.A.B. might have second thoughts about maintaining its ability to decide medical issues.

Appellate Court Rules on IMR Timeframes

The 2nd Appellate District has issued the first of what should prove to be several appellate decisions on the timeliness of independent medical review (IMR) decisions. The court was considering the assertion by a W.C.A.B. panel that IMR timelines are mandatory and that late IMR means the W.C.A.B. — and not doctors — will determine whether treatment is medically necessary.

In SCIF v W.C.A.B. (Margaris), the court annulled the W.C.A.B. decision and remanded with instructions to issue a new decision. The court’s reason for accepting this case was set out early in the decision:

“…We issued a writ of review because this case presents an important issue of first impression regarding the interpretation of section 4610.6, and because it relates to an issue upon which the appeals board has rendered conflicting decisions.”

In its analysis, the court provided an extensive discussion of the history of authorization for medical treatment, the implementation of utilization review (UR) for treatment requests and the enactment of the statutory scheme for IMR.  As noted by the court in SB 228 and 899, the legislature changed both the standards and process used by an employer to evaluate a request for medical treatment. The legislature adopted the medical treatment utilization schedule (MTUS). The legislature then removed the existing process for resolving medical disputes using dueling doctors and required the use of utilization review, which required review of treatment requests in light of the MTUS.

In 2012, the legislature enacted another set of reforms to address disputes over UR determinations. As noted by the court, a UR determination authorizing medical treatment was binding on the employer but became subject to further review through IMR — but only for the employee. The court further observed that even where an IMR determination is ultimately reversed by the W.C.A.B., the issue of medical appropriateness was to be returned to IMR for further review, not decided by the W.C.A.B.

See also: IMR Practices May Be Legal, Yet…  

Turning to the specific issue before it, the court determined the use of “shall” in Labor Code 4610.6 was directive, not mandatory:

“…The appeals board concluded that section 4610.6, subdivision (d), is clear and unambiguous.  According to the appeals board, “shall” is mandatory, and any IMR determination issued after the 30-day time frame is necessarily invalid. In support of this interpretation, the appeals board cited section 15, which provides “‘[s]hall’ is mandatory and ‘may’ is permissive” (§ 15.). Thus, the appeals board concluded that construing “shall” as mandatory, such that an untimely IMR determination is invalid, comports with both the ordinary meaning and the statutory definition of “shall.” As we explain, however, the issue is more nuanced than the appeals board recognized.

We note that section 15, upon which the appeals board relied in this case to support its interpretation of section 4610.6, subdivision (d), juxtaposes “mandatory” against “permissive,” which arguably suggests the legislature used “shall” in the obligatory permissive sense rather than in the mandatory-directory sense, as the appeals board concluded. (See McGee, supra, 19 Cal.3d at p. 960 [discussing section 15 and concluding that “on its face, the statutory language suggests that the legislature intended the present provision to be mandatory (i.e., obligatory), rather than permissive.”]) However, given the difference in meaning given to “shall” in the statutory context, we conclude section 4610.6, subdivision (d), is ambiguous. Accordingly, we move beyond the plain language of that section and consider its meaning with reference to the rest of the statutory scheme and the intent of the legislature.”

The court commented further on this issue:

“Generally, time limits applicable to government action are deemed to be directory, unless the legislature clearly expresses a contrary intent.  (Edwards, supra, 25 Cal.3d at p. 410.) “‘In ascertaining probable intent, California courts have expressed a variety of tests. In some cases, focus has been directed at the likely consequences of holding a particular time limitation mandatory, in an attempt to ascertain whether those consequences would defeat or promote the purpose of the enactment.  [Citations.] Other cases have suggested that a time limitation is deemed merely directory ‘unless a consequence or penalty is provided for failure to do the act within the time commanded.’”

The court also found the lack of a penalty or consequence for noncompliance to be significant. Citing similar language in actions by the state personnel board, which had been held to be directive rather than mandatory, the court suggested a failure to meet the statutory time frame did not result in a loss of jurisdiction. The court also indicates in its review of the mandatory vs. directory dichotomy that statutes that set time frames for government actions that do not include a self-executing consequence are almost universally construed as directory.

The court also noted that construing the 30-day time frame as directory furthers the legislative objective of SB 863.

“We conclude from these findings that the legislature intended to remove the authority to make decisions about medical necessity of proposed treatment for injured workers from the appeals board and place it in the hands of independent, unbiased medical professionals. Construing section 4610.6, subdivision (d), as directory best furthers the legislature’s intent in this regard. The appeals board’s conclusion in this case — that an untimely IMR determination terminates the IMR process and vests jurisdiction in the appeals board to determine medical necessity — is wholly inconsistent with the legislature’s stated goals and their evident intent.

Finally, and perhaps most tellingly, the legislature provided that, “[i]n no event shall a workers’ compensation administrative law judge, the appeals board, or any higher court make a determination of medical necessity contrary to the determination of the independent medical review organization” (Stats. 2012, ch. 363, § 45, codified at § 4610.6, subd. (i)). We find this portion of the statute — particularly the use of the phrase “in no event” — to be a frank expression of the legislature’s desire to remove the issue of medical necessity of proposed treatment from the jurisdiction of the appeals board in all cases subject to IMR. The legislature’s intent would be defeated by giving section 4610.6, subdivision (d), mandatory effect, as the appeals board did in the present case.”

See also: 20 Work Comp Issues to Watch in 2016

Additionally, the applicant attorney argued that the W.C.A.B.’s holding in the Dubon case (Dubon 2) supported the W.C.A.B’s usurpation of authority to decide medical treatment. The court noted the holding in Dubon 2 is supported by the AD’s regulations providing that IMR applies solely to timely and procedurally proper UR but that no similar regulation existed for IMR. The court declined to comment on the W.C.A.B.’s decision in Dubon 2 as the issue was not before it.

Comments and Conclusions:

There are currently two other cases pending in the appellate courts, both in the 3rd appellate district — on this same issue and, interestingly, this case was not the first grant on the issue. However, the court set a very aggressive briefing schedule and, even with multiple amicus briefs it heard, considered and decided this case in, what is by appellate standards, a very short time (less than six months). Clearly the court was very interested in this issue, which had multiple W.C.A.B. panel decisions with conflicting holdings.

The court, in its decision, also rejected arguments offered by both the applicant and the W.C.A.B. that untimely IMR resulted in unnecessary delays — a rationale offered by the majority panel in both Dubon and Margaris. The court, very astutely, noted this argument made no sense given the time frame for obtaining QME opinions or litigating medical treatment issues before the W.C.A.B.  The court pointed out that, even with the delays in completing IMR, the W.C.A.B. decision was more than 13 months after the initial decision in UR and more than 10 months after Maximus rendered its decision. The court was clearly, and properly, skeptical of the argument that letting the W.C.A.B. decide medical issues would result in a more prompt disposition.

The court did offer an option to applicants to challenge untimely UR through the ability to file a petition for writ of mandate to compel a decision. While a statutorily viable option, this is impractical, especially in light of the current timeliness of most IMR determinations. Further, the issue here has never really been the timeliness of IMR. The goal for the applicant attorney bar, and apparently some of the commissioners, has been to usurp the medical decision making process from being medically driven to being litigation-based.

The decision does not provide a lot of nourishment for those who are waiting for some sliver of light on the Dubon 2 issue. The court, in its footnote, declined to really comment on Dubon 2, but it did note there was some basis for the W.C.A.B.’s decision. However, the very strong language of the court emphasizing the public and legislative policy behind having medical decisions made by physicians, and the much greater speed and certainty of the UR/IMR process over the legislatively disfavored litigation process, may provide some hope that, given a chance, the appellate court would also reject the W.C.A.B.’s arguments in support of Dubon 2.

Legislative Preview for Work Comp in 2016

Common wisdom suggests that major workers’ compensation legislative activity won’t take place during an election year. For 2016, that would seem to hold true.

That is not to say, however, that various interested parties will be sitting idly by, waiting for the clock to turn to 2017.

CENTERS FOR DISEASE CONTROL ADD TO THE LIST OF CHRONIC PAIN GUIDELINES

On Jan. 13, the Centers for Disease Control and Prevention (CDC) closed the public comment period for its proposed Guideline for Prescribing Opioids for Chronic Pain. According to the CDC, the guideline is being proposed to offer “… clarity on recommendations based on the most recent scientific evidence, informed by expert opinion, with stakeholder and constituent input considered.”

The guideline goes to great lengths to address two important issues. The first is that current guidelines in many states – both public and private – are based on dated information. The second, which is critical, adds to the growing number of voices to say that best practices for providers include accessing physician drug monitoring programs (PDMP) to reduce the risk of doctor shopping and toxic – and sometimes fatal – mixtures of prescription drugs when the patient provides incomplete histories or none at all of their drug use (both prescription and illicit).

This need to access a PDMP before, and during, treatment with opioids is echoed by the Medical Board of California (MBC) and the DWC. Their comments also underscore a considerable problem facing California policymakers when trying to create incentives for providers to use the Controlled Substance Utilization Review and Evaluation System (CURES) without directly mandating access.

This dilemma is best summed up by the analysis of Senate Bill 482 by Sen. Ricardo Lara (D – Bell Gardens) that is at the Assembly Desk pending referral to committee. The bill, which would mandate participation in the CURES system as well as other measures to curb the abuse of opioids, has garnered opposition from medical associations and one medical malpractice insurer. The opposition, according to analyses by legislative staff, is based on two issues – the first being whether the CURES system is capable of handling the volume of inquiries a mandate would engender, and the second being concern that requiring CURES access will become a standard of care that could subject providers to malpractice liability.

As to the former, this issue arose during the campaign waged against the 2014 ballot measure Proposition 46. According to the non-partisan Legislative Analyst’s Office (LAO), “Currently, CURES does not have sufficient capacity to handle the higher level of use that is expected to occur when providers are required to register beginning in 2016.” This raises an important question – does the CURES system now have the capability to meet the demand that a mandate would create? If it doesn’t, then the legislature needs to understand why.

As to the second issue, it is difficult to comprehend the level of distrust that is subsumed in the position that opposing a mandatory review of possible prescription drug abuse by a patient would establish more potential malpractice liability than knowing that the CURES database exists and not checking it. In time, perhaps, it will be the appellate courts that resolve that issue.

There is no shortage of guidelines that address the appropriate use and cessation of use of opioids for non-cancer chronic pain. The DWC is finalizing its latest iteration on this issue as part of the MTUS. It will differ from both the CDC and the MBC guidelines to some degree, but the overall treatment of this issue is very similar. In addition, the division will be implementing a prescription drug formulary as required by Assembly Bill 1124 by former Assembly member Henry Perea (D – Fresno). That, too, will likely provide opportunities to address the proper use of opioids in the workers’ compensation context, preferably after the chronic pain guidelines are completed.

As noted by the CDC and the MBC, and implicit in the DWC’s guidelines, this is not just a question of UR. If all the work by the division is simply viewed as a more effective way of saying “no” regardless of the circumstances, then the public health issues associated with the abuses of opioids will continue.

Workers’ Compensation Insights is a bi-monthly publication of Prop 23 Advisors. Subscribers will receive in-depth analyses of pending California legislation and regulations, review of important WCAB and appellate court decisions and commentary on trends within the system in California and nationally. To read the rest of this newsletter, click here.

Southern California Is Home to Fraud

Those who are familiar with the California workers’ compensation system are aware that much of the fraud, and a very high percentage of the liens, in the state are in Southern California. These three articles (here, here and here) show why workers’ comp fraud is making a home in Southern California.

Before the passage of SB-899 in 2004, there was one back fusion surgery for every laminectomy (surgery to reduce pressure on the spinal cord or nerves) provided in workers’ compensation in California even though only 3% of laminectomies by group health providers resulted in fusions.

Prior to SB-899, it was almost impossible for the payers to say no to physicians’ requests for multiple surgeries. Back then, six and seven unnecessary back surgeries on a patient were not uncommon — and, apparently, for the benefit of the doctors, not of the injured workers.

To compound the problems for the injured worker, when the multiple back surgeries were not successful, the employee was then given opioids for the intractable pain. This resulted in a large number of injured workers who are now opioid addicts.

Opioid-addicted injured workers now account for a high percentage of the complex and advanced IMRs (independent medical reviews done by Maximus).

Pending regulations from the Division of Workers’ Compensation for a pharmacy formulary (using evidence-based medicine) will help reduce the number of inappropriate requests and questionable denials.

Already, passage of SB-863, with a focus on evidence-based medicine and medical decisions made by medical professionals, helped significantly reduce the abuses and improve the care for the injured workers of California. The IMR process outlined in SB-863 takes medical decisions away from non-medical professionals. It helps protect the injured workers from abuses like those outlined by the FBI in the articles I linked to above.

It would be interesting to see how many of the millions of the liens filed in the system are associated with the indicted doctors mentioned in the article.

Workers’ Comp Market Trends

Senior executives from some of the top California workers’ compensation carriers identified emerging trends that are of great importance to California employers at the 2015 California Workers’ Compensation and Risk Conference.

Panelists were:

  • Moderator: Pamela Ferrandino, national casualty practice leader at Willis North America
  • Mike Mulray, chief underwriting officer at Everest National
  • John Dickey, regional president at Liberty Mutual
  • Mike Hessling, chief client officer at Gallagher Bassett
  • Glen-Roberts Pitruzzello, vice president of workers’ compensation, group benefits claim strategy and clinical operations, at the Hartford

The WCIRB projects the estimated average medical cost-per-claim will be the lowest since 2007. What do you think are the key drivers behind this improvement?

  • The independent medical review (IMR) process. IMRs are being upheld in favor of the employer – around 90% of the time. That is showing that evidence-based protocols are being followed.
  • Medical inflation has decreased. Effective utilization review (UR) programs have had a positive effect on controlling medical costs.

Will the greater use of generic drugs in the California drug formulary materially lower workers’ compensation costs?

  • Texas is a good example. We have not seen any major pushback from what Texas has done. Texas communicated to the providers, so they know how to work within the new environment. There are reports showing that the new system has been successful.
  • It could help decrease employers’ costs by 10% to 15%. There could be much broader implications to the claimant, as well. It is not just about the money, though; the upside is also the social benefit of avoiding addiction issues.

How do you see medical marijuana affecting employers?

There are three areas:

  1. Intoxication policies come into play when you have an employee using marijuana not related to a workers’ compensation claim.
  2. To date, New Mexico is the only state that ruled for compensable treatment, but the employee was already using marijuana prior to injury. This will likely continue to be challenged in various states.
  3. Medical advocacy will continue to prove effectiveness vs. the alternatives, like opioids.

What insights have you gleaned from predictive modeling?

  • We have had some great success from the claims standpoint. There have been some great advances in tools to help with predictive modeling over the past five to 10 years, like text mining, which allows modelers to look for keywords in cases that show a trend.
  • Predictive modeling can be used to see how to prevent claims from even happening. It is more effective to try to keep the claim from occurring, rather than controlling costs once a claim has occurred.
  • We are using predictive modeling more to drive early intervention in claims to reduce the costs, but we also are trying to see how we can use this information for risk control and reduce claims altogether.
  • Almost all predictive models have a level of false positives. We need to learn to filter out the white noise that is not providing useful information.

Collectively, do you think SB 863 improvements will continue to adhere, or will they be chipped away just like the others?

  • The instant you change the rules, people try to find new loopholes. You cannot stop. One or two years of results is not a trend line to claim a victory. We will probably see erosion, and we will have to come up with solutions as an industry.
  • I’m not sure if we are seeing SB 863 play out as intended, because of issues like IMR and liens. There will probably be tweaking.
  • Many stakeholders are trying to prevent erosion, so there is cautious optimism.

What are trends to look for?

  • Formulary – we could adopt the Texas system, and, while it wouldn’t play out here exactly the same way, I think we need it.
  • Ways to reduce frictional costs for employers, like IMR.
  • The impact of a new president and immigration reform on the workers’ compensation system.
  • Attracting talent for claims adjuster positions.
  • The next generation of workers entering the workforce and becoming injured workers. Engaging with them as injured workers will be vastly different from how we have engaged with workers in the past. They will have different expectations.
  • Changes in the market cycle and how it affects the health of the workers’ comp system.